Supreme Court To Review Pregame Prayers
By next fall, students at the nation's public high schools should know whether something many of them have been doing for years is constitutional.
The U.S. Supreme Court agreed last week to decide whether students can lead prayers over the public-address system at football games. The court accepted a case from Texas, where a federal appeals court ruling that prohibited organized student prayers has caused turmoil at games this fall.
The high court's decision, expected by next summer, will be its first ruling on school prayer since 1992, when it held 5-4 in a case from Rhode Island that clergy-led prayers at graduation ceremonies were an unconstitutional government establishment of religion.
Since the ruling in that case, Lee v. Weisman, many school districts in the South and elsewhere have adopted policies allowing students, rather than school officials or clergy members, to deliver organized prayers at graduation and other school events. Subsequent legal challenges to such prayers have resulted in a confusing array of lower-court rulings.
The Texas case involves the 4,400-student Santa Fe school district near Galveston, which has generally permitted organized student prayers at graduation ceremonies and football games in recent years.
The prayers, as well as a few other allegedly unconstitutional religious incidents and practices, were challenged in 1995 by two families, one Roman Catholic and one Mormon, identified in court papers only as Does I and II.
A federal district judge generally ruled for the families and required the school district to come up with prayer policies consistent with a 1992 ruling by the U.S. Court of Appeals for the 5th Circuit that authorized student-led, student-initiated graduation prayers as long as they were "nonsectarian and nonproselytizing." The Supreme Court's refusal in 1993 to review the 5th Circuit court's ruling in Jones v. Clear Creek Independent School District motivated religious conservatives across the country to promote student-led prayers as an alternative to the clergy-led prayers struck down in Lee.
Earlier this year, a panel of the New Orleans-based 5th Circuit ruled 2-1 that the "nonsectarian, nonproselytizing" language of the Clear Creek ruling was a necessary element for district policies permitting student- led prayers at graduation.
When it came to football games, however, the appeals court majority said student-led prayers were not permissible under the U.S. Constitution at all. The court said a key element of its 1992 Clear Creek decision was that a high school graduation was a once-in-a- lifetime event deserving of being solemnized with prayers. But football games, the majority said, are "hardly the sober type of annual event that can be appropriately solemnized with prayer.
"Both the Santa Fe district and the state of Texas, joined by eight other states, asked the high court to review the case and uphold student-led prayers at graduation ceremonies, athletic contests, and other school functions. Gov. George W. Bush of Texas, who is seeking the Republican nomination for president, signed on to the state's brief.
Both briefs focused on graduation prayers, with the district and the states arguing that school officials would have to scrutinize and censor such prayers to ensure they were nonsectarian and nonproselytizing.
But the Supreme Court apparently did not wish to use the case to revisit the issue of graduation prayers. The court limited its review in Santa Fe Independent School District v. Doe (Case No. 99-62) to the question of whether the district's "policy permitting student-led, student-initiated prayer at football games violates the establishment clause" of the First Amendment.
The district's prayer policy for football games says the school board "has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pregame ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.
"The district's policies address only graduation and football- game prayers. No student-led prayers were authorized at other school functions, such as games in other sports or musical performances.Legal experts on both sides of the school prayer debate said that a ruling just on football games should provide much-needed guidance to schools."
A football game is a school function,'' said Joseph Conn, a spokesman for Americans United for Separation of Church and State, based in Washington. "Schools should not pressure kids to pray, whether it is in the classroom or on the football field."Anthony P. Griffin, the lawyer for the two Doe families, told the justices in court papers that "the fact that ... prayer before football games is led by students does not diminish the pressure to religious conformity, if anything, it may increase it.
"But Kelly Frels, the lawyer for the Santa Fe district, told the justices in his brief that the 5th Circuit court's ruling conflicts with Supreme Court decisions requiring that students' religious speech not be discriminated against.
"By prohibiting religious content in voluntary student speech at most school functions, even when nonreligious speech is permitted, the court below has required school administrators to engage in official discrimination based on religious viewpoint," he said.
The 5th Circuit court's ruling, which covers Louisiana, Mississippi, and Texas, caused considerable turmoil in those states this fall, especially in football-mad Texas, where pregame prayers are a tradition in many communities.
At Santa Fe High School last spring, students voted to have one of their peers deliver a pregame "message." In August, a reporter asked the district's superintendent, Richard Ownby, what would happen to the elected student speaker if she delivered a prayer. Mr. Ownby was quoted as saying the student would have to be punished as if she had cursed. That student resigned from the speaking job and was replaced by Marian Ward, a Santa Fe High senior.
School officials warned Ms. Ward not to mention a deity or anything else that could be construed as prayer in her pregame "sportsmanship" message. Ms. Ward and her parents asked a federal district judge for a temporary restraining order against the district, and they got one.U.S. District Judge Sim Lake of Houston said "neutrality requires that a student may ... select a religious solemnization without government interference." Whether Judge Lake was openly defying the ruling of the 5th Circuit court was not clear. But at this fall's Santa Fe High home football games, Ms. Ward delivered messages that usually thanked God and requested him to watch over the players and ensure good sportsmanship.
The Supreme Court, which will hear arguments in the case in March or April, is not likely to take this fall's events into account, since they are not part of the record considered by the lower courts. But the high court's ruling will answer the question of whether messages like Ms. Ward's will be delivered in the future.
Vol. 19, Issue 13, Pages 22-24Published in Print: November 24, 1999, as Supreme Court To Review Pregame Prayers